City Delivery Co. v. Henry, 139 Ala. 161

City Delivery Co. v. Henry

139 Ala. 161

Ala.

1903

Check Treatment

McCLELLAN, C. J.

This action is prosecuted by Lula Henry against the City Delivery Co. and sounds in damages for personal injuries. Thе character and extent of plaintiff’s injuries are not indicated in the complaint further than is involvеd in the averments that they wore “serious,” and that she has suffered and will continue to suffer from them “both in body and mind.” In our opinion these averments are insufficient. The defendant haled into court to answer a complaint for having inflicted injuries upon the person of the plaintiff, and thus impleaded to defend both the wrong and the injury, and to compensate for the latter if the wrong be proved, the damages being measurable by the character and extent of the hurts done, is entitled to be apprised by the сomplaint at least, as to the physical injuries the plaintiff has suffered. The plaintiff must prove what such injuries were, and the defendant has a right to have them stated in the complaint with certainty and definiteness to a common intent that it may be prepared *166to rebut the case she proposes to lay before the jury, or, in other words, “while it is unnecessary that the complaint should describe in detail all the characteristics and consequences of the injuries or wounds sustained, and extreme рarticularity -is not required, actual known facts as to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍injuries and their results should be stated with such reasоnable accuracy as the circumstances of the case will permit, in order that the adverse party may be informed of their nature and extent, and thus be advised as to the character of the proof which may be introduced.” — 16 Encyc. Pl. & Pr. 377. This defect in the complaint in this case was pointеd out by the demurrer, and the demurrer should have been sustained.

The 1st and 3d counts of the complaint aver that “the defendant, by and through its agent or servant, John McOlary, negligently caused an ice wagon which wаs drawn by mules or horses to run against • and strike plaintiff with great force 'thereby throwing her to the ground, and inflicting upon her serious injuries,” etc., etc. It is insisted for appellant that these counts are in trespass аnd not case. We think not. If it be granted that, construing the. averments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍against the pleader, the intendment is thаt the running against and striking the plaintiff was directly caused by the negligent act of the defendant itself, and not that the collision was due to the negligent act of the defendant’s servant merely, still the injury, being a resultant of negligence and not of intentional causation, would he indirect, wanting in the application of force1 and consequential within the doctrine which distinguishes case from trespass.

But, in our opinion different, conclusions are to be reached in respect of the 2d and 4th counts. They severally аver that “the defendant through its agent or servant, John McC-lary, wantonly, willfully or intentionally caused an icе wagon to run against plaintiff with great force thereby throwing plaintiff to the ground and inflicting upon her seriоus injuries,” etc., etc. We see no escape from the conclusion that the wantonness, willfulness, аnd intentional wrong thus averred is the wantonness, willfulness or evil in*167tention of tlie defendant itself as contradistin-guished from the ivrong of the servant only for the consequences of which the defendant is responsible merely because its relation of employer to McOlary. The charge involves the affirmative participation of the defendant in the act of driving the wagon against the person of plaintiff, and not merely the defendant’s responsibility of the act of its servant. It is in effect to say that the vehiclе ivas run against the plaintiff by direction of the defendant. The injury ascribed to the defendant is direct and immеdiate' from force applied ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by it, and not merely from force applied by its servant within the scope of its employment: The counts are in trespass for the act of the defendant itself and nоt for the unauthorized act of its servant for which it is responsible. To- sustain them proof of actual participation on the part of the defendant in the damnifying act ivas essential. No such proof, nor any evidence tending to establish such participation, was adduced. The affirmative chаrges, with hypotheses, requested by the defendant on the 2d and 4th counts of the complaint should, therefоre, have been given.

It will suffice to say with reference to the action of the city court in sustaining dеmurrers to the 4th, 5th and Ttli pleas that each of these pleas purported to answer the complaint as a whole, and they are obviously bad as against the 2d and 4th counts.

Ideas 4, 5 and 7 being eliminatеd, the contributory negligence hypothesized in charges 14 and 17 was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not pleaded at all, and for thаt; if for no other, reason those charges were properly refused.

We consider it the settlеd law of this State that the master is liable in damages for injuries willfully and-intentionally inflicted by the servant while aсtipg within the general scope or line of the employment. — Southern Bell Telephone, &c. Co. v. Francis, 109 Ala. 224, 231, et seq.

For the errors pointed out the judgment of the city ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court must be reversed. The cause is remanded.